Maligned doctor’s case a study in shades of grey
Dr. Charles Smith was Canada’s leading medical expert on child abuse. Now he is accused of sending innocent people to jail with bad science. Was he more interested in punishing abusers than in finding the truth, or is he the victim of a complicated field?
If the law has made you a witness, remain a man of science. You have no victim to avenge, no guilty or innocent person to convict or save — you must bear testimony within the limits of science. — Dr. Paul C.H. Brouardel, Chair of Forensic Medicine at the Sorbonne, ( 1897)
I’ve got a thing against people who hurt children. — Dr. Charles Smith, forensic pathologist, expert witness, ( 2005)
s director of the prestigious Ontario Pediatric Forensic Pathology Unit at Sick Kids hospital, it was Charles Smith’s job to conduct autopsies on children who died under what the coroner’s office deemed suspicious circumstances. He became the undisputed expert in Canada, more experienced than anyone at assessing when and how these children died. Did they fall or were they shaken? Did they suffocate on a blanket or were they smothered?
For many of the accused — parents, relatives, babysitters — Smith’s word was the difference between freedom and jail. Now, he faces lawsuits accusing him of negligence and withholding evidence, and the controversy is spreading. The Ontario Chief Coroner is investigating all 44 of Smith’s cases since 1991 that involved the criminal justice system or the Children’s Aid Society. The fallout has followed Smith to Saskatoon, where he moved this summer to take a job at a hospital analyzing slides in the pathology lab. This week, the Saskatoon regional health board is deciding whether to let him keep the year- long contract in light of questions about his record.
Smith’s colleagues in pediatric forensic pathology see him as more of a victim than a villain, one who — like them — walks a tightrope across an ever- changing science. There are few hard facts in this corner of medicine, only educated opinions. One year’s expertise is out of date the next. Which makes it all the more shocking that there were no safety nets to check and protect Smith. There were no professional committees to evaluate his opinions, no automatic reviews of his conclusions. Any mistakes he made — wittingly or not — were central to the outcomes of complex and notorious court cases.
“ There but by the grace of God go I,” says Dr. David King, a semi- retired forensic pathologist in Hamilton with 30 years experience.
“ I managed to survive so far without making any major booboos. I keep thinking to myself, maybe I retired at the right time.”
An the world of medicine,
pathology is considered the refuge of doctors with poor bedside manners.
It’s true that most pathologists do hospital work, studying tissues and organs, trying to determine the presence of disease and illness. When you have a biopsy, it’s the pathologist who gives your doctor the diagnosis. But a few pathologists — those who relish solving mysteries — specialize in forensics. Their work more closely resembles a scene from CSI than Scrubs — working on cold bodies in search of clues to their death. Their motto is, “ We speak to the dead to protect the living.” Unlike their clinical counterparts, forensic pathologists spend almost
Ias much time in suits as greens, appearing in court to present and defend their findings.
That combination — part recluse, part showman — is hard to come by. Forensic pathologists are a rare breed in Canada, where they are not formally recognized, unlike in the U. S. and Britain. There is no official training or certification; special training is not considered essential. Doctors learn on the job.
That’s how Charles Smith began. He graduated from medical school in Saskatchewan in 1975. After a year working in surgery, he transferred to general pathology, where he spent four years in training. Smith then spent another year studying pediatric pathology at the Hospital for Sick Children. He worked there throughout the 1980s. Smith was out of the country last week and did not return calls. But last month, in an interview with the Star, he described pediatric pathology almost as a calling.
“I am passionate about my work,” Smith said. “There is nothing more heart- wrenching than a mother with empty arms seeking answers as to why her baby died.” Few forensic pathologists want to work on dead babies. Even today, there are only a dozen people in the province who regularly conduct autopsies on children. The science is complex and the scenes are heartbreaking — babies with tender skulls, broken bones and tiny, swollen faces.
In the late 1980s and early 1990s, child abuse was becoming a national priority. Specialized units had formed at children’s hospitals to respond to suspected cases of such abuse. The provincial government had introduced a new law making it an offence for professionals like social workers and doctors to fail to report child abuse suspicions.
Then, in 1991, the coroner’s office opened a special unit at Sick Kids to deal exclusively with the suspicious deaths of children. Smith was named director, and took on the majority of its cases. The unit began to re- examine cases previously labelled sudden infant death syndrome. Armed with warrants, Smith criss- crossed the province overseeing exhumations in suspicious cases. He also presided over the autopsies of many new cases. A flurry of murder charges and high- profile court cases followed. Smith was the expert pathologist who performed autopsies on the bodies of one and twoyearold Aparinaa and Apiramil Sriskantharajah in 1992. He testified that they both appeared to have been strangled by hand. It would have taken 3 to 4 minutes to kill each one, he testified. Their mother pleaded guilty to manslaughter. A few years later, Smith testified at the trial of the parents of six- month- old Sara Podniewicz. As the lead pathologist, he’d concluded she had 24 broken bones, which had caused bleeding around her spinal cord and lungs. Her parents claimed she had been conscious moments before they called 911, but Smith’s analysis determined Sara had been dead for up to 15 hours before arriving at hospital. The parents were convicted of second- degree murder. By the late 1990s, Smith was handling more pediatric forensic cases than anyone in Canada. While a pathologist in a smaller city might oversee 10 such cases a year, Smith’s unit at Sick Kids managed dozens.
“ Pathologists look there for expertise, just because of the sheer volume,” says Dr. Michael Shkrum, director of the regional forensic pathology unit for southwestern Ontario, based in London.
Smith’s track record as an expert witness was building, too. In 1994, the Canadian Press reported that he had testified in up to 25 cases of non-accidental head injuries in children, with only two resulting in acquittals. In 1996, Smith estimated he had conducted at least 1,000 autopsies on children. By 2001, he had appeared in court about 200 times.
“ Dr. Smith did an enormous amount to raise the standard of how pediatric forensic cases are done in Ontario,” says King. Smith published regularly and toured the world going to conferences. He taught at the University of Toronto and was often a visiting lecturer at other universities. Ten years ago, his resume spanned 21 pages.
Other pathologists sent him their findings when they wanted a second opinion on a pediatric case.
“ I know him as very dedicated and committed person,” says Dr. Nadia Mikhael, a forensic pathologist in Ottawa with more than 30 years experience. “I have very high respect for him.” So how did the Canadian guru of pediatric forensic pathology fall so hard, so fast? After seeing so many dead babies, did Smith become too emotionally invested? Did he become more interested in punishing abusers than in finding the truth? Many colleagues in pediatric forensic pathology say their love of children prompted their entry into the field.
“ I’ve got a thing against people who hurt children,” Smith told the Star last month.
n general, the murders of
children are more complicated than those of adults. The motive is often less obvious, the means harder to detect. Forensic pathologists aren’t looking at stab wounds or bullet holes, they’re probing for signs of bleeding around the brain and behind the eyes, which might indicate the child’s head was jostled roughly.
“ When adults attack each other, they usually mean business,” says Dr. Lloyd Denmark, Alberta’s former deputy chief medical examiner now based in New Zealand.
“ With children, often people don’t intend to kill the child. Often they thump it in anger, they’re trying to get it to shut
Iup.” When Smith led the unit at Sick Kids, many of his cases pointed to “ shaken baby syndrome,” a diagnosis that had rarely been heard a couple of decades before. Even today, the Ontario coroner’s committee that oversees every suspicious death of a child under 2 must review the medical literature on it every six months. In pediatric forensic pathology, what’s considered creed one year can be outdated the next.
“It’s like hockey or soccer,” says Dr. James Cairns, Ontario’s deputy chief coroner. “You’re only as good as your last game.”
Unlike a shooting victim, children who have been badly shaken won’t necessarily die immediately. There’s rarely a witness, which makes timing the fatal injury especially important. A 24hour window for the injury might cast a shadow over many suspects, whereas three hours can give the Crown the argument of “ sole opportunity” — pointing the finger at only one person.
All this makes pediatric forensic pathology much more of an art than a science.
“ At the end of the day, pathology is a judgment call,” says Mikhael, the Ottawa pathologist. “ Sometimes our judgments can be right, sometimes wrong. We do the best with the best available information we have.” Then they are called to court to explain their findings. Pathologists are there as scientists, asked to comment on the pathology, not the criminality. If they don’t know something definitively, they must concede it.
That’s often hard to do, many admit, especially in a court system that repeatedly bolsters their egos by calling them as “ experts.”
“ They want us to be confident, they want us to tell them things beyond a reasonable doubt,” Denmark says. “ And sometimes you can’t do that.”
Every day in court is like an oral exam. Pathologists need to develop a callous of confidence to withstand the critique of defence lawyers. Smith shone in this world, at least in part because the more experience a forensic pathologist has, the more credibility. But it went beyond expertise. Defence lawyers describe Smith as radiating authority from the witness stand. He rarely backed down. In a world of greys, his judgment was often black and white, they say.
“ He tried to portray a sense of authority that other doctors don’t,” says Breese Davies, a lawyer who represented Anthony Kporwodu, who was accused of killing his baby daughter. “He’s very committed to his opinion.”
Finding credible experts to provide opposing opinions was difficult. Defence lawyers often had to go far afield — to British Columbia, the U. S. — certainly out of Ontario, where Smith was revered. In several cases, Smith’s opinion alone was enough to sway a judge and jury, even when four other experts took the stand with an opposing view. Regardless of whose views carry the day, there’s always the potential for the case to come back.
“ We never know what cases are going to come back to haunt us,” says Shkrum.
he first public questions
about Smith’s objectivity were raised in 1991. A one- yearold baby in Timmins died in 1988 while under the care of a 12- year- old babysitter, who said the child had fallen down stairs. Smith’s autopsy concluded the baby died from shaken baby syndrome. The girl was charged with manslaughter. But after a long trial, during which the girl’s family brought in 10 experts from around North America to counter Smith’s opinion, the judge sided with the defence. In his 1991 decision, the judge lambasted Smith for not following his own autopsy guidelines and for assessing the case with tunnel vision.
“ It would behoove Dr. Smith in making such an important decision as a diagnosis of shaking that would lead to a manslaughter charge, to show he seriously considered possibilities other than shaking,” the judge wro-
T
te. In response, the coroner’s office reviewed the case and supported Smith’s conclusions.
Smith’s judgment didn’t come under wider scrutiny until the end of the 1990s, when it seemed that his word suddenly was being challenged in a number of cases. The Toronto homicide squad became aware of growing questions surrounding Smith’s competency and objectivity. One officer told a court that he now demanded Smith put things in writing before they would lay murder charges.
That often would take a long time. Smith was getting a reputation for disorganization and tardiness. Where his colleagues would take three months to deliver their written findings from an autopsy, he could take the better part of a year. By then, if the families had chosen to cremate the body, it was too late for a second autopsy.
Things came to a head in January 2001, when the Crown withdrew charges of murder against Louise Reynolds of Kingston. The case had hinged on Smith’s testimony that Reynolds’ 7year- old daughter Sharon had died after being stabbed more than 20 times with a pair of scissors. But after a number of other experts testified the wounds were caused by dog teeth — supporting the defence argument that Sharon was mauled by a pit bull — Smith publicly deferred to their opinions. By then, Reynolds had spent two years in jail.
That same month, the case of Maureen Laidley was scheduled to go to trial in Toronto. She had been accused of murdering her 3- year- old stepson after Smith concluded the death was not accidental. But at the preliminary hearing, three other pathologists testified differently, concluding instead the child had likely died from hitting his head on a coffee table. The Crown dropped the charges on the eve of trial. As controversy whirled around him, Smith asked the coroner’s office to review all of his cases, and voluntarily stopped doing autopsies until he could be cleared. The review was put on hold a few months later, after lawsuits were filed against Smith. Three are still pending.
In 2002, the Ontario College of Physicians and Surgeons publicly cautioned Smith for the “ deficiencies in his approach” in three cases. They reprimanded him for being “ overly dogmatic” and having a “ tendency towards overstatement” and “ overinterpret( ing) findings.”
Since then, strange tales of sloppy storage of evidence have come to light. Last spring, the coroner’s office scoured Smith’s disorganized desk and found long-missing tissue samples stemming from one 12- year- old case. It was at least the second time that important evidence had gone missing in his office.
In June, the coroner’s office relaunched the review of Smith’s cases involving criminal investigations since 1991. The first results are expected in a year.
All of which raises the question — why was no one watching Smith, especially when his testimony was so critical to so many cases? The answer, it seems, is that Smith fell between two worlds: the coroner’s office and the hospital. Neither was checking him, whether for his own protection or for that of the accused.
Since the mid- 1990s, some of Smith’s cases were reviewed by the province’s chief forensic pathologist in the coroner’s office, Dr. David Chiasson, but not all of them, Chiasson said. And when the father of the 12- yearold babysitter from Timmins filed a complaint about Smith to the Ontario College of Physicians and Surgeons, he was initially told the college had no jurisdiction over him. Later, the college changed its position. Since 2000, the coroner’s office has introduced several new safeguards, in part as a result of the Smith controversy. A provincial committee of pathologists and other experts examines the case around every suspicious death of a child under two years old before the official findings of the autopsy are released. A system of peer review for all pediatric forensic pathologists has been introduced. Doctors are examining each other’s work on a routine basis, critical in a field where so much is changing, so rapidly. And more forensic units examining suspicious child deaths have opened around the province, taking the pressure off of the Sick Kid’s unit. The Royal College of Physicians and Surgeons has begun the process of certifying forensic pathologists. Soon, everyone will have to pass a standard exam, and medical schools will offer specific courses. The first hope is it will bring consistency, and train doctors in a realm foreign to most medicine — the court system. The second is that it will usher more experts into the field. In Hamilton, two jobs have been posted since January. No qualified Canadians have applied.
All this is not enough for defence lawyers like Cindy Wasser, a director of the Association in the Defence of the Wrongly Convicted. Wasser represented Angela Veno, who ( with her husband, Anthony Kporwodu) was charged with the murder of her three- month- old daughter, Athena, on the basis of Smith’s conclusions. Ultimately a judge stayed the charge, reprimanding Smith for causing unnecessary delays.
Wasser is calling for a public inquiry into a legal system that had come to rely too heavily on the opinion of one man.
“ What goes on in the office, in the Crown, in the police that they didn’t stop this?” says Wasser, who now heads a new committee advising the coroner’s office.
“ I want to make sure Smith never happens again.”
For his part, Smith maintains that the difficulty he is in now does not reflect on the quality of his work.
“ I’m not controversial, the job is,” he told the Star last month. The leading pediatric forensic pathologist in Canada has been accused of crossing the line between scientist and crusader. His colleagues have watched in horror as their mentor’s reputation has been shattered. They see themselves in him. While other doctors worry the wrong diagnosis could lead to a patient’s death, forensic pathologists fear their errors will send an innocent person to jail. So far the evidence suggests that has happened in at least four of Smith’s cases. There are 40 more under review.